Prosecutor on the defensive

David Zucchino

Durham County District Attorney Mike Nifong, a prosecutor for more than a quarter-century, found himself in the defendant's chair yesterday, charged by the state bar with committing ethics violations during his rape prosecution of three former Duke University lacrosse players.

Leaning back in his chair, his chin on his hand, Nifong listened impassively as a North Carolina State Bar lawyer accused him of making prejudicial and misleading statements to the media, withholding exculpatory evidence and lying to two judges.

Katherine Jean, the attorney prosecuting Nifong, said he "repeatedly and intentionally misled the media and thus the public" while also "creating racial unrest in Durham." She said Nifong sought rape indictments, even though he knew the Durham stripper making the accusations had given contradictory accounts to police and at one point had recanted.

Jean said Nifong also withheld test results showing that no DNA from the accused players was found on the stripper's body or clothes but that DNA from several unidentified males was recovered.

"This didn't have to happen. The horrible consequences were entirely foreseeable," Jean said during her opening statement. "The harm done to these three young men and their families and the justice system of North Carolina is devastating."

Nifong's attorney, David Freedman, said Nifong regretted his statements about the case, some of which were "clearly outlandish." But he said Nifong committed no ethical violations and did not intentionally mislead the public or judges. "It is not unethical to pursue what some people might consider an unwinnable case," Freedman said in his opening statement.

A lead police investigator on the case, testifying for the prosecution, said he sought out Nifong early on and expressed grave doubts about the case. After he and his boss reviewed the evidence, he said, Nifong muttered: "You know, we're [screwed]."

"He said it would be hard to prove the allegations in court," investigator Benjamin Himan testified, adding that he was surprised when Nifong sought an indictment. "He always said it was going to be circumstantial -'he said, she said' - and he said that's how most rape cases are," Himan said.

In a case that split Durham along race and class lines, Nifong relentlessly pursued the rape charges last year despite ever-shifting accounts by a black stripper whose rape accusations against three white athletes were proved false. North Carolina's attorney general declared the defendants innocent in April; he dropped all charges and called Nifong a "rogue prosecutor" who engaged in a "tragic rush to accuse."

If found guilty by a three-member bar Disciplinary Hearing Commission, Nifong could be disbarred.

In media interviews a year ago, Nifong called former lacrosse players David Evans, Reade Seligmann and Collin Finnerty "hooligans" and said their assault on the stripper at a lacrosse team party in March 2006 was racially motivated.

Freedman said Nifong stopped making public statements after he realized that it would be "improper" to continue disparaging the defendants.

Responding to charges that Nifong told a private lab director to withhold from the defense the exculpatory DNA results, Freedman said: "There is no evidence - none - of any sort of agreement between Mr. Nifong and anyone to exclude any evidence."

Freedman pointed out that a grand jury - not the district attorney - indicted the defendants. "There will be no evidence of any kind that [investigators] were instructed how to present the case to the grand jury," Freedman said.

The bar has accused Nifong of lying to judges when he assured them he had passed on all evidence to defense lawyers. Freedman said Nifong honestly believed he had turned over everything.